Drew York, writing in Gray Reed & McGraw’s Tilting the Scales blog, offers some advice on how to “failsafe” electronic agreements with employees.

He describes a scenario in which a company requires its employees to electronically acknowledge receiving, reviewing and agreeing to abide by the company’s employee handbook. One of the workers later is injured on the job, and the company wants to invoke the handbook ‘s arbitration agreement.

“In several recent cases, employees have disputed that they electronically acknowledged an agreement with their employer,” writes York. “This raises an intriguing question: how do employers prove that an employee ‘signed’ an agreement when there is no written signature?”

Read the article.

A divided panel of the Texas Court of Appeals in Houston has held that the 2014-2015 drop in oil prices is not a force majeure for purposes of general force majeure contractual protection, reports Liskow & Lewis in its Energy Law Blog.

Jackie E. Hickman explains that the court addressed a dispute between ConocoPhillips Company and TEC Olmos over a farmout agreement that required Olmos to commence drilling by a specified date.

“During the interval between execution of the agreement and commencement of drilling, however, changes in the global supply and demand of oil caused the price of oil to drop significantly. As a result, Olmos was unable to secure financing for drilling and informed ConocoPhillips that it would be unable to meet its drilling obligations. ConocoPhillips filed suit against Olmos and the guarantor of the contract, Terrace Energy Company, for breach of the farmout agreement. The lawsuit sought $500,000 in liquidated damages,” Hickman writes.

Olmos invoked the force majeure clause of the farmout agreement to excuse its inability to perform, but the court agreed with ConocoPhillips.

Read the article.

Image by Mike Mozart

Target Corp.’s $17 million class settlement to resolve consumer claims over a 2013 data breach passed Eighth Circuit scrutiny on its second trip to the appeals court, reports Bloomberg Law.

The court rejected an objector’s challenge that the named plaintiffs weren’t adequate representatives for the whole class because they received compensation while others didn’t, according to reporter Perry Cooper.

He explained:

“All class members had the ability to register for credit monitoring, and all of the compromised payment cards undoubtedly were canceled and replaced by the issuing banks,” Judge Bobby E. Shepherd wrote for the U.S. Court of Appeals for the Eighth Circuit.

“Any risk of future harm is therefore entirely speculative,” the court said.

Read the Bloomberg Law article.

Bloomberg Law reports that a ruling that an ex-King & Spalding associate can go to trial on a claim he was fired for raising ethics concerns highlights a critical question for law firms—how to respond to an internal ethics complaint without appearing to retaliate?

A New York federal court rejected King & Spalding’s argument that associate David Joffe clearly was terminated for bad performance and “administrative shortcomings,” and not in retaliation for reporting ethical concerns stemming from two partners’ representation of Chinese telecommunications company ZTE Corp., writes Mindy L. Rattan.

“While most associates are at-will employees, New York associates are protected from retaliation after the associate reports or threatens to report ethical concerns about others in the firm,” according to Rattan.

Read the Bloomberg Law article.

A lawsuit accusing the U.S. Department of Veterans Affairs of failing to pay overtime to nurse practitioners and physician assistants since December of 2006 has been certified as a class action, according to a web post by Androvett Legal Media & Marketing. The certification is listed as an opt-in class, opening the door for more plaintiffs.

Class representatives Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred and Michele Gavin brought the lawsuit on behalf of nurse practitioners and physician assistants from VA facilities across the country. Attorneys estimate as many as 10,000 VA employees nationwide ultimately could be represented in the class action.

According to the lawsuit, nurse practitioners and physician assistants were required to process electronic and computer patient records after work hours using VA facility computers, laptops and sometimes their own personal home computers without compensation. The work is vital to the treatment of patients and is considered mandatory by VA supervisors.

Provost Umphrey attorneys Michael Hamilton of the firm’s Nashville office and Guy Fisher in the Beaumont, Texas, office are among the attorneys working on the lawsuit along with counsel David Cook and Clement Tsao of Cincinnati’s Cook & Logothetis, LLC, Douglas Richards of Lexington, Kentucky and Robert Stropp of Mooney Green, P.C. in Washington, D.C.

“These are medical professionals who are taking care of our veterans,” said Hamilton. “If we aren’t paying them properly, what sort of statement does that make about the importance of caring for those who watched over us and our rights?”

“Ultimately, it’s about patient care,” said Cook. “We need to do our utmost for those who have put on the uniform and defended our rights. And, we can start by properly paying the medical professionals who care for them when they need it.”

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President Donald Trump’s long-time lawyer Michael Cohen has been telling pals he expects to be arrested soon, according to new reports Tuesday.

CNBC reports that a Vanity Fair article also quoted an ex-White House official saying that “Trump should be super worried about Michael Cohen” deciding to cooperate with federal prosecutors against the president.

“If anyone can blow up Trump, it’s him,” the source told Vanity Fair about Cohen, who is under criminal investigation by federal prosecutors in New York City.

Federal Judge Kimba Wood had given attorneys for Cohen and Trump until Monday to raise any objections they had to a special master’s findings on whether seized documents were privileged. She later rejected their request to be allowed to file their objections under seal.

Read the CNBC article.

Courthouse News Service reports that Education Secretary Betsy Devos need not provide full debt relief to more than 60,000 defrauded students, but she must stop collecting on their loans, a federal judge said in court Monday.

A proposed class of borrowers had asked U.S. Magistrate Judge Sallie Kim to revive an Obama-era policy that promised full debt forgiveness to students defrauded by the now-defunct, for profit Corinthian Colleges, according to reporter Nicholas Iovino.

Kim sided with the federal government’s position that returning to the “status quo” means delaying processing claims for debt relief, not going back to the Obama-era policy of forgiving all loan debt. She acknowledged that borrowers will still suffer harm to their credit and interest growing on their loans, even though she has ordered the government to stop collecting.

Read the CNS article.

McKool Smith has racked up some new recognition, including being named again in The National Law Journal‘s “Top 100 Verdicts” list.

The NLJ recognition represents the 18th time the firm had a top 100 verdict, more than any other law firm since the rankings began.

In a release, the firm said: “In 2002, The National Law Journal published its first annual listing of the nation’s ‘Top 100 Verdicts.’ Since that time, no law firm in the country has won more Top 100 Verdicts than McKool Smith.”

Other recent recognition includes being named Trial Group of the Year by Law360, and receiving Band 1 rankings in Chambers USA for Texas commercial litigation and Texas intellectual property.

Law360 also presented the firm its Insurance Practice Group of the Year honor.

Inn 2017, Texas Lawyer presented the firm its Litigation Department of the Year award, and Managing Intellectual Property named the firm Patent Plaintiff Firm of the Year.

McKool Smith, based in Dallas, also has offices in Houston, Austin, Marshall, Silicon Valley, New York, Washington DC, and Los Angeles.

Reuters is reporting that a couple whose nine relatives were among the 26 people fatally shot in a Texas church massacre in November has sued the U.S. government for $50 million, saying its “institutional failures” played a part in the murders.

The lawsuit in federal court claims the U.S. Air Force acted negligently when it failed to report the criminal record of gunman Devin Kelley to a U.S. database, which could have prevented him from legally purchasing an assault rifle used in the killings, reports Jim Forsyth.

He writes that legal experts have said the Air Force would not be able to claim federal immunity in the case, but cautioned any lawsuits faced a prolonged battle.

Read the Reuters article.

A federal judge has certified a class action lawsuit involving nurse practitioners and physician assistants accusing the U.S. Department of Veterans Affairs of failing to pay overtime since 2006, according to a post on the site of Androvett Legal Media and Marketing.

Judge Elaine D. Kaplan of the U.S. Court of Federal Claims granted certification in an action brought by class representatives Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred and Michele Gavin on behalf of nurse practitioners and physicians assistants at 85 different facilities across the country.

Provost Umphrey attorneys Michael Hamilton of the firm’s Nashville office and Guy Fisher in the Beaumont, Texas, office are among the attorneys working on the lawsuit along with counsel David Cook and Clement Tsao of Cincinnati’s Cook & Logothetis, LLC, Douglas Richards of Lexington, Kentucky and Robert Stropp of Washington DC’s Mooney Green, P.C.

“These health care professionals dedicate their time for the well-being of our veterans, and by law, are entitled to overtime when they are required to work beyond their work schedules,” said Hamilton. “We believe this lawsuit to be critical for veteran patient safety and health. To expect these employees to work extended hours without overtime pay is wrong. With the class certification, we can now proceed onto the next step in this lawsuit.”

The lawsuit seeks compensation for employees who worked overtime processing electronic and computer patient records using VA facility computers, VA laptops and sometimes personal computers, work that is critical to the medical treatment of patients. Nurse practitioners and physician assistants say the work is considered mandatory. Those who failed to complete the assignments were subject to disciplinary measures for poor time management.

“I’m grateful that the judge agreed with us and certified the lawsuit as a class action,” said Cook. “It is wrong for any employer to expect people to work for free.”

Hamilton and Cook estimate that as many 10,000 VA employees could be represented in the class action lawsuit, according to the Androvett post.

The case is Stephanie Mercier, Audricia Brooks, Deborah Plageman, Jennifer Allred, Michele Gavin v. The United States of America, No. 1:12-cv-00920 in the U.S. Court of Federal Claims.

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The Fifth Circuit has affirmed an order compelling arbitration, despite the fact that the parties seeking to compel arbitration were not signatories to the relevant arbitration agreement, according to a post on Carlton Fields’ Reinsurance Post.

Jason Brost explained that the case involved a real estate sale contract that contained an arbitration agreement under which the parties agreed to arbitrate any disputes “in accordance with the Comprehensive Arbitration Rules and Procedures administered by J●A●M●S/Endispute.”

The plaintiff claimed that the defendants in the case induced the buyer to enter into the 1998 agreement based on the false premise that he would get a properly constructed home. The defendants, who were non-signatories to the agreement, moved that the arbitration clause be enforced.

The appellate court found for the defendants.

Read the article.

Above the Law reports that a judge has characterized a $60,000 fee request from Latham & Watkins to be “astonishing” and “aggressive beyond any convention.”

The firm, representing the defendant in two cases brought by a Harvard professor who sued an employee of his investment fund for allegedly recording conversations, won the case on the merits. So now Latham is attempting to recover legal fees, reports editor Kathryn Rubino.

Massachusetts Superior Court Judge Mitchell H. Kaplan criticized Latham for charging such a high fee “to file a brief that a first-year law student could write.”

Read the Above the Law article.

Nearly $4 million in fees are at stake in a California Supreme Court fight between a big law firm and a big client over broad advance conflict waivers the firm used in its client engagement letters, according to Bloomberg Law.

Reporter Joyce Cutler explains that Sheppard Mullin Richter & Hampton LLP was “disqualified from representing J-M Manufacturing Co. Inc. in a $1 billion qui tam action because the firm concurrently represented one of the hundreds of defendants in an unrelated matter. The state appeals court held the advance conflict waiver J-M gave Sheppard Mullin didn’t absolve the firm of its duty to tell J-M about the specific conflict once it came to light.”

The question for this case of first impression is whether a law firm needs to tell a sophisticated client about a specific conflict when it arises, or whether the firm can instead rely a boilerplate advance conflict waiver in the client’s engagement agreement.

Read the Bloomberg article.

The Washington Times is reporting that the Supreme Court over the next month is poised to upend the way the country picks representatives to Congress, decide whether the First Amendment protects people who refuse to do business with same-sex couples and rule on whether President Trump’s tweets can be used in court to derail his agenda.

Reporter Alex Swoyer sees the case for some blockbuster rulings that will signal to lower courts how they should treat the unorthodox Trump.

“The biggest test comes on the president’s travel ban. His opponents have begged the justices to hold Mr. Trump’s campaign-era tweets against him, saying his comments about Muslims taint the travel policy he announced once he took office,” writes Swoyer.

Read the Washington Times article.

A group of 28 subcontractors at a Valero refinery in Texas City are suing the company and their employer, alleging that they suffered injuries and post-traumatic stress from an explosion at the plant less than two months ago, reports the San Antonio Business Journal.

The employees of  Beaumont-based Richard Industrial Group Inc. filed the lawsuit against their employer and Valero Refining Texas LP, a subsidiary of San Antonio-based refining company Valero Energy Corp.. Richard Industrial Group provides subcontracting work at Valero’s Texas City refinery, according to reporter Sergio Chapa.

“The workers are seeking damages based on claims that they suffered orthopedic injuries and hearing loss from the accident and are dealing with post-traumatic stress disorder,” writes Chapa.

Read the Business Journal article.

Lawyers with Texas-based firm Deans & Lyons have filed a wrongful death lawsuit in Denton County against The Float Spot, alleging the company’s negligence led to the drowning death of a 71-year-old woman in one of its aquatic sensory deprivation tanks.

In a release, the firm said Gloria Fanning died April 7, having spent eight days on life support following her first visit to the spa, located in Flower Mound, Texas. Advertised as the “world’s first tranquility studio,” The Float Spot encloses customers in sensory deprivation tanks filled with highly salinated water that increases a person’s buoyancy. The company touts myriad health benefits, while downplaying any potential risks from the enclosed floatation tanks, the firm said.

The release continues:

As a first-time customer, Ms. Fanning was given a brief orientation then left alone in the tank. According to the lawsuit, she later was discovered in a state of “distress” by an employee who initially called the business owner for guidance rather than calling 911 for assistance. Once paramedics finally arrived, they found Ms. Fanning unresponsive. She never regained consciousness.

“Gloria was promised an experience that was beneficial and completely safe. The company’s own website claims that accidental drowning is not possible, which is patently untrue and contradicts reports of others across the country who have died in a similar fashion,” said the Fanning family’s attorney, Michael Lyons, co-founder of Deans & Lyons.

“This is a rapidly expanding industry that lacks any of the regulation necessary to ensure that customers are kept safe inside these aquatic sensory deprivation tanks. It is too late for Gloria, but this has to change.”

The lawsuit, filed May 31, is Greta S. Anthony and David Porter v. Fc Acqua, LLC, dba The Float Spot and Raymond J. Thoma, Cause No. 18-4802-367 in Denton County District Court.

Striking an interest provision from a draft subcontract wasn’t enough to keep a party to the agreement from being required to pay interest, according to a review of a Missouri case by Jane Fox Lehman in Pepper Hamilton’s Constructlaw blog.

When the general contractor later failed to pay the subcontractor, the sub sued and won a verdict that included prejudgment interest at the rate of 9 percent pursuant to Missouri law. The general contractor appealed.

Lehman explains the outcome: “The court held that it could not consider the stricken interest provision because it was extrinsic evidence. ‘The rationale,’ it explained, ‘is that the writing excised from the agreement, whether by way of striking, erasing, or simply transferring the agreement to a new piece of paper without the stricken language, is not part of the agreement between the parties.’”

Because the parties had failed to reach an express agreement on an interest rate, the trial court’s ruling was upheld.

Read the article.

Trademark licensing disputes can present thorny issues at the intersection of contract and trademark law, warns an article in the
Dorsey & Whitney LLP blog TheTMCA.com.

“And when the dispute involves the Trump brand for residential buildings, the adjudication of rights and obligations under a trademark license agreement can become national news,” write Sandra Edelman and Dan Goldberger.

In Residential Committee of the Board of Managers of 200 Riverside Boulevard at Trump Place Condominium v. DJT Holdings LLC, the court held that the 200 Riverside Building was not required to use the Trump name on the façade of the Building.

The court agreed with the Condo Board that there are “no obligations or requirements in the license agreement for the building to carry the name ‘Trump’ on it in perpetuity.”

Read the article.

A Texas appellate court has affirmed an $11 million verdict against the Choctaw Nation of Oklahoma, upholding a May 2016 jury verdict that the Choctaw Casino bore responsibility for a deadly 2013 crash of a charter bus carrying elderly North Texas residents to the Choctaw Casino in Durant, Okla.

A release from the lead trial counsel describes the ruling:

On Tuesday (May 29), a three-judge panel from the Court of Appeals for the Fifth District of Texas at Dallas rejected 14 separate arguments by Choctaw’s legal team seeking to reverse the jury’s findings. The appellate ruling found that Choctaw was vicariously liable for the negligence of the charter bus company, the bus driver and for a tour guide who had arranged the April 2013 casino trip. According to testimony, the crash occurred when the bus driver lost control of the bus on the northbound lanes of State Highway 161 in Irving as he was arguing with the tour organizer.

Trial lawyers from The Law Offices of Frank L. Branson were lead trial counsel in this case and represented the estate and family members of 82-year-old Alice Stanley, the lead plaintiff. Attorneys Frank L. Branson and Chip Brooker of The Law Offices of Frank L. Branson successfully argued that the Choctaw Nation of Oklahoma had a contractual relationship with the tour organizer and the charter bus operator and the tour, Cardinal Coach Lines. The jury awarded $4.9 million to Ms. Stanley’s estate and $6 million to the estate of 69-year-old Paula Hahn, who was represented by separate legal counsel.